Intergenerational Dialogue

As has been noted previously(and often) a major aim of this blog is to promote dialogue between generations.Recent developments in the U.S. and the world seem to have intensified(if possible) the need.we appear to have arrived at a major inflection point in U.S. and world history.As a demonstration of some remaining flexibility,I am e mail posting this post..

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I disagree with the foundational premise about morality. I do not agree that moral action — morality — lies in sanctioning the state taking life as a punishment. Indeed I think that there is a good argument for the converse. Taking and giving life is not the province of man, but God.

That said, assuming arguendo that your premise is valid, which it is not, the argument fails for many reasons, several of which I have outlined below. The gist of it is that the assumptions for this argument are not consistent with the facts or data.

1. Homicide is not a crime of great recidivism. In fact it is the crime which most convicts are most unlikely to repeat, excluding felony murder (which is a crime of imputed intent and another discussion but one that properly lies with the person addressing moral guilt since moral culpability necessarily must consider what the actor intended, not just the outcome). There are many good studies and much data, but http://nj.gov/corrections/pdf/REU/Recidivism_Among_Homicide_Offenders.pdf
There is underlying data to be bound in the work of the Bureau of Justice Statistics. http://Www.bjs.org.

2. The death penalty is no deterrent to crime. The Supreme Court effectively caused a national moratorium on the death penalty between 1972 and 1976 . Furman v Georgia (408 US 238). Crime did not go down nationally during that period. Homicide did. Please see Capital Punishment : Deterrent Effects & Capital Costs by Jeffrey Fagan, Professor of Law and Public Health; Co- Director, Center for Crime, Community and the Law. Https:/www.law.columbia.edu/law_school/communications/reports/summer06/capitalpunish.

3. I am unclear about the point you make about costs? I assume that the fact that the fact that it is more expensive to execute a person than to imprison them for life goes against your view. Nonetheless, this is a fact, however inconvenient for your argument.
There is an easy to read discussion here: http://www.nbcnews.com/id/29552692/ns/us_news-crime_and_courts/t/execute-or-not-question-cost/. But BusinessWeek and other financial publications have done a lot here too. A very good discussion is in Professor Fagan’s work above. The cost per execution five or six years ago is between $3-5mm I think. California is a high cost state and the incarceration costs are approximately $45K/ year. The math speaks for itself.

Once we agree on the facts and the data, and a meaningful discourse cannot be had without such agreement, it may be possible to agree to their meaning. I suspect you will not change your mind about the value of the death penalty even if we show that your arguments for social value are wrong. All that would mean is that the stated reasons for such support of the death penalty are not the primary or sole reason you support it. That is, of course, your right.

The idea of justice, however, is not a swift idea — understanding history helps us see that time and distance gives a better view of events and their significance than examination that is proximate to the events. This an idea that is true on the micro level as well. How then is swift decision making more just when it comes to the life or death of a person? It’s not, that’s how. There have been 366 overturned murder convictions based on DNA evidence. This is a new and developing area of science. That liberal propaganda machine, Time magazine writes, “New research finds that almost 4% of YS capital punishment sentences are wrongful convictions.”. The piece is : More Innocent People on Death Row Than Estimated: Study.”(http://time.com/79572/more-innocent-people-on-death-row-than-estimated-study/

The study is from the Proceedings of the National Academy of Sciences, a prestigious peer reviewed publication. The data and the conclusions are compelling. The rates of error in death penalty cases is alarming and figures in other publications cite rates of error. Swift decisions? Inconsistent with just in our system. Moving ahead and allowing for known flaws and taking the casualties as acceptable? Immoral on its face I think.

I think it might be more valuable to look at why their is such a misunderstanding of the underlying facts? Who stands to gain from popular and incorrect notions about the death penalty deterrence? Costs of incarceration? The fact is that prisons and their administration have been privatized and are big business. So are executions.

This is good on many levels. By good, I mean that this list of premises and what they tell us evokes a deeper analysis than usually expected at first glimpse. First, there seems to be an assumption that I have attempted to present a straightforward argument for the use of a swift and just death penalty. But the ramifications of the argument go beyond that. I have tried to clarify the “fact” that no matter our choice, death penalty or not, innocents are likely to die precisely because of our choice. We do not have the option of taking a perfect “high ground” and thereby pointing fingers at others as being evil and claiming for ourselves moral superiority. We cannot avoid some responsibility for the deaths of innocents! For those of us who truly want to minimize such loss, this approach clarifies the need to acquire statistics and an ability to use them that actually measures what we need to measure. Any degree of certitude that we bring to “knowing” the best option must be supported by this kind of evidence.
So let’s look again at the premises and arguments:
JTG disagrees with my fundamental premise that “morality” is that which maximizes the saving of lives. He writes that, “it is immoral for a state to kill as punishment because that is the province of God, not man.” This demonstrates a major difficulty as regards finding the paths that best serve man in this material world. What is interpreted as spiritual can take myriad form in our minds, but mechanistic reality has a way of imposing its rules and consequences no matter the supposed profundity of spiritual beliefs. To the degree that an argument is based in faith alone, it can exercise no more claim to being valid than another, perhaps opposite argument, that is also based in faith alone. To the degree that a faith attempts to support itself with measurable evidence, this “evidence” is in the realm of science, the realm of skepticism, testing and adjustment. I avoid the subjective complexities of religious belief by focusing on the knowable, the measurable, the mechanistic. By thinking of ourselves as engineers who are trying to build the best (social) structures, we avoid the distorting emotional identifications linked to being sinful or angelic. We avoid the addictions of cherished certitudes that hinder or prevent our acceptance and adjustment to new and better evidence.
Here is another look at the sub premises as JTG covered them:
The fact that recidivism for murder is low does not negate the fact that there is recidivism, and thus the death of innocents.
JTG writes that, “The death penalty is not a deterrent to murder.” None whatsoever? To refute this statement would require my finding only one example. My premises were based on a “swift and just death penalty”. The fact that today’s death penalty cannot be easily measured as having deterrent value is complicated given the high probability that a murderer in jail will die of old age instead of being put to death by the state. Logic tells us that pushed to an extreme, the ultimate and most certain way to deter a person from murdering AGAIN is to make him dead. Beyond that most certain of all “deterrents”, it is hard to believe that given all the ways that all human beings obviously weigh cost versus gain, the thought of losing one’s own life would have no application whatsoever when applied to a choice between committing murder or not.
Money spent keeping killers alive will not be spent saving lives elsewhere means just what it says. A “swift and just death penalty” would free up immense amounts of money that our current system is wasting on its legal complexities as well as jail costs. We can all think of ways these dollars, if available, could be allocated to save the lives of innocents.
As a side point JTG brings up the fact that we incarcerate at a high rate. I think that this is true. This may be an expected cost in return for our purchasing a unique value. In a system that strives to maximize individual freedom it seems reasonable that there would be many who would misuse that freedom and get into trouble. To live relatively free of external disciplines (force) requires that we be “governed” by internal (self-guided) disciplines. Those who demonstrate that they cannot control themselves in this regard present a danger to those who can, those who value their freedoms.

JTG provides a number of well-presented observations. A good argument based in premises that are likely true and formed with sound logic transcends any of the variables we experience in the human condition. So regardless the age, race, gender, or the mind’s state of health, a rational idea remains a rational idea.
JTG mentioned the death penalty as an issue often perplexing our Jurists and others. In the light of the above, let’s structure some rational premises, premises on which I think we can all agree, and see what they reveal. If “morality” is to be correlated with that which ACTUALLY saves the greatest number of lives, I think that this can provide a “moral” challenge to some prevailing SENTIMENTS:
If we had a just and swift death penalty:
Is it likely that eventually an innocent will be put to death? Yes.
Without that just and swift death penalty:
Is it likely that someone serving time for murder will kill another prisoner or guard? Yes.
Is it likely that someone serving that time will escape and kill again? Yes.
Is it likely that some individuals who would have been deterred from crime and killing will choose to be criminals and will become killers? Yes.
Is it likely that funds spent keeping killers alive will not be spent saving lives elsewhere? Yes.
Doesn’t this mean that logically, those who argue against a just and swift death penalty are in fact, if successful, condemning many innocents to death? Yes.

No, your foundational premise is wrong, I think. I don’t believe that morality is akin to utilizing capital punishment in such a way to minimize deaths. An argument exists that is compelling to me, that says it is immoral for a state to kill as punishment because that is the province of God, not man.

Assuming arguendo, however, that your premise is not fatally flawed, which it is, the argument fails for the following reasons. Simply, the sub premises are inconsistent with the facts and data we know today.

1. Homicide convicts are not likely to reoffend. For the most part, excluding felony murders, homicide has the lowest recidivism rate of all violent and property crime.
See http://nj.gov/corrections/pdf/REU/Recidivism for a thoughtful and scientific treatment. The Bureau of Crime statistics publishes real data too.

2. The death penalty is not a deterrent to murder. Homicude rates in the US went down between the Supreme Court moratorium imposed by the holding in Furman v Georgia, 408 US 238, in 1972 until 1976. Please see : Deterrence and the Death Penalty by the National Research Council of the National Academies (April 18, 2012). This is a review of over three decades of work on the subject by what I think is a fairly respectable group. The conclusion was that studies in deterrence were fundamentally flawed. Also the Bureau of Crime statistics fills in a lot here too.

3. Is it likely that funds spent … (?) this is unclear to me, but it is well settled that it is more expensive for a person to be put to death than to be imprisoned for a lifetime. I assume this fact is against your assertion? There is a great deal of data about this, easy to find the facts, but I recommend:http://www.nbcnews.com/id/29552692/ns/us_news-crime_and_courts/t/execute-or-not-question-cost/. It is from 2009, but the costs have increased on both sides so the reasoning holds. I assume you will come around to the facts, although I understand that this may not change your view of the death penalty. Why that is, is none of my business.

Perhaps more interesting once we agree on the facts, is an examination of why the common misconceptions about the facts? Who benefits? Does the privatization of prisons and the execution process have anything to do with that?

Also, we incarcerate at a greater rate than any first world country. Prisons have been big business and cost the taxpayers a great deal. Yet it is in some interest to keep building and filling them. Any honest discussions of policy and detectors must include the facts about this broken circle.

The power and the weakness of democracy is the ability to absorb the first blow and only then to retaliate.This is another way of saying that we rely on the ability to err and then to correct.Such a system ultimately relies on regulation of those who have power and learning from the abuse thereof.Thus we have the problem of who will regulate the regulators.DS and JTG both seem to distrust the even handedness of regulators,(not unwisely) although no doubt differing on the need for them.
Surprisingly DS (this from participation in a justice dept/DHS panel on rehabilitation 40 years or so ago)I learned that the recidivism rate for murderers as murderers was surprisingly low,less than 12%.Of course when other crimes were included the rate rose to above 35%.I don’t recall what percent were violent.But your “logical” analysis ends up justifying the killing of someone who, if guilty in the first place, is unlikely(unless a serial killer or a career assassin)to kill again(Leaving out the issue of cost, which interdicts the death penalty).In the argument between David Hume and logical positivism,Hume wins; we feel first and our thinking follows.Genetic archaeologists are now telling us that the formerly believed missing strands of DNA from our Neanderthal past (yes,there was considerable interbreeding…the cultural anthropologists win!) were and are related to mood, melanoma and affect., (Modern Asians and Europeans are the recipients thereof)
So those few of us who missed that second out of Africa migration of old Homo Sap and the”miscegenation” pursuant to the slave trade are (smile) the most capable of escaping the curse of Hume and can make the best objective judgments!!! OMIGOD!

Daedal2207 – I loved your playful analysis of the “missing strands of DNA” from our Neanderthal ancestry”. “OMIGOD!” “There but for the grace of God go I” can become, “Here because of God’s curse am I.” Either way, we can see ourselves and others as victims of past events and therefore absolved of responsibility. All (no matter their behavior) can be assigned an equal “dignity”. The act of cultivating a superior empathic understanding can expand in our souls a profound FEELING that we are good!
I don’t remember Hume placing feelings first and then from them sprouts our thinking. I like Hume for his probing the problems of “knowing” truth. Certitudes needed to be adjusted to reasonable skepticisms. The reasonable exercise of doubt is more complicated than are leaps of certitude (faith). Skeptical reasoning requires thought which then (hopefully) causes our feelings to swing toward appropriate adjustment. But, whatever the thinking of great minds past, we have minds of our own. We can now draw upon their ideas and add to them (nearly in my case) 80 years of personal observations. Thank you for providing this forum.

Your recollection of one of Hume’s major conclusions is correct.Stanford’s Encyclopedia of Philosophy indicates the first of the theses in his “theory of the mind” is “Reason alone cannot be a motive of the will,but rather is a slave of the passions”.Number 2(elsewhere) is “Moral distinctions are not derived from reason….(but)derived from the moral sentiment,feelings of approval…felt by spectators…He goes on to say “While some virtues and vices are natural,others,including JUSTICE are artificial”,,,,If we have to go back to the 18th and 17th centuries we find the same fundamental arguments as today and no certain guide to action. “we have minds of our own”…yes Don; thanks for sending me back to check my passion enabled memory.

A great defense of the system and the elderly.Much appreciated by octogenarian types like us.But physicians experience CMI and relicensing.Elderly drivers are almost as troublesome behind the wheel as teenagers.Do we wait for driverless cars or is retesting in some form sensible? Competency can last well into old age but suppose it doesn’t? The world’s bustle stops at the doors of the high court.But with the demise of Antonin Scalia,progressivism in some measure will get behind the walls.The second amendment however it is defined, was not designed for Uzis.(Ben Carson)and life expectancy is beyond 45 years.(Ben Carson).An activist court may require more mental agility than some of our justices are used too.Of course this is not necessarily age related!

Precisely the point. When there is a demonstrable issue or pattern, it should be handled.

That is not the case here so the question is why is this the subject of discussion?

There are two reasons: one is a political agenda. Two is an unfortunate ageism, which like the other isms is often under the surface and revealed only upon deeper inspection. At the core of that is fear and the need to differentiate oneself from an undesirable status, however derived.

On lifetime appointments for SCOTUS: They are valuable and the Justices are not broken and do not need to be fixed.

To be clear:

The rule interpreting the lifetime nature of the appointments has been in place since the Fourth Chief Justice, John Marshall.

The system of checks and balances is largely supported when incumbent electeds in the legislative and executive branches are not able to portend, manipulate or use the highest level of judicial appointments to further popular sentiment or their own careers.

For the true strict constructionists among us there can be no argument. The system is designed to allow for glacial movement — not the wild swings associated with popular culture and public reactions to current events.

Allowing Justices to rule without fear of political reprisal allows for integrity of results. Like it or not. Alexander Hamilton’s declaration in the Federalist Papers that “nothing can contribute so much to its firmness and independence as permanency in office”, makes this point gracefully.

Term limits are currently a vaguely popular notion. But they disadvantage the states that employ them. Attempts by Republicans to institute federal limits failed (most recently in 1994, I think). The disadvantage occurs when other states whose elected officials are not subject to these limits, enjoy the advantages of wisdom, experience and seniority in Congress: committee chairmanships, knowledge and sophistication about the system and the actors and plum assignments, offices and more.

Almost all systems created by man seek to perpetuate themselves and therefore, incumbency and seniority are advantages. I understand and applaud real understanding and efforts to change these facts and level playing fields. These are not present here.[ For a neutral discussion of the real effect of term limits — do they work in the US? see http://www.mcgeorge.edu/Documents/Publications/Report1.pdf.%5D

Our systems of laws and government are complex, perhaps even arcane, but they favor senior and experienced actors. Don’t like the system? Or don’t like the actions of those in the system?There are ways to change both. These require knowledge and sophistication and yes, the power that comes with the relationships in these bodies that are formed over time.

Finally the notion that Justices become infirm and less competent at this job is not supported by data or evidence. It is interesting to note three things:

1. Farleigh Dickinsons’ PublicMind Poll measured American voters’ attitudes towards various proposed Supreme Court reforms, including implementing term limits. The 2010 poll found that a majority of Americans were largely unaware of a proposal to impose a term limit of 18 years, as 82% reported they had heard little or nothing at all. Notwithstanding a lack of awareness, 52% of Americans approved of limiting terms to 18 years, while 35% disapproved. When asked how old is too old for a Supreme Court judge to serve if he or she seems healthy, 48% said “no limit as long as he or she is healthy”, while only 31% agreed that anyone over the age of 70 is too old.

2. Contra, many justices evidence clear and enduring reasoning and decisions well beyond age 70. Oliver Wendell Holmes retired at 91 and wrote the Schenck decision at 78 ( outlining a narrow limitation on free speech — clear and present danger). When Holmes became convinced—possibly through the influence of his frequent companion in dissent, Justice Louis D. Brandeis—that the objectionable speech or publication was not likely to bring about “a clear and present danger,” he did not hesitate to register his disagreement. His opinions in Abrams v. United States and Gitlow v. New York (268 U.S. 652, 1925) are perhaps most notable. He was 84.

William Rehnquist authored Bush v Gore in 2000. He was 76. The ultimately controlling portion of the opinion was 5-4. Clinton was in the White House. Though he died in 2005 after retiring a couple of years before, there was no argument about Rehnquist’s fitness to serve at 76.

Justice Blackmun who lived until 1991 and was a champion of death row inmates and other liberal causes wrote, in his emotional dissent in 1989’s DeShaney v. Winnebago County,(rejecting the constitutional liability of the state of Wisconsin for four-year-old Joshua DeShaney, who was beaten until brain-damaged by his abusive father) Blackmun famously opined, “Poor Joshua!” In his dissent in 1993’s Herrera v. Collins, where the Court refused to find a constitutional right for convicted prisoners to introduce new evidence of “actual innocence” for purposes of obtaining federal relief, Blackmun argued in a section joined by no other justice that “The execution of a person who can show that he is innocent comes perilously close to simple murder.” He was 85 and we can see justice tempered by mercy and not hindered by age.

3. Our culture reveres youth, beauty and fitness yet evidences deep dissatisfaction with it’s systems and leaders. That is understandable. But our failure to acknowledge and understand the inherent age bias and lack of rationality in this position is not. As for the idea that everyone is competent to understand and do each other’s jobs? Don’t get me started….